Patna High Court
Rajeshwar Singh & Anr vs Maharani Adhirani Kamsundari D on 10 October, 2012
Author: Sheema Ali Khan
Bench: Sheema Ali Khan
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.213 of 1995
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AGAINST THE JUDGMENT AND DECREE PASSED IN TITLE SUIT NO. 118
OF 1981 BY SRI RAM SNEHI THAKUR, SUBORDINATE JUDGE-IV,
DARBHANGA ON 29TH OF APRIL, 1995.
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1. Rajeshwar Singh, Son of Raj Kumar Subheshwar Singh.
2. Kapileshwar Singh, Son of Raj Kumar Subheshwar Singh.
Both resident of Rambagh Palace Darbhanga, P.S. University Campus, Town and
District Darbhanga.
.... .... Appellants
Versus
1. Maharani Adhirani Kamsundari Devi, Widow of Late Maharaja Adhiraja Dr.
Sir Kameshwar Singh Bahadur of Darbhanga, Kalyani House Darbhanga, P.S.
and District Darbhanga.
2. Smt. Katyayani Devi, Wife of Arvind Kumar Jha (and daughter of Raj Kumar
Jiweshwar Singh), Villag Mahrail, P.S. Jhanjharpur, District Madhubani, Bihar.
3. Smt. Dibyayani Devi, Wife of Bhakteshwar Jha ( and daughter of Raj Kumar
Jiweshwar Singh) of Village Lalganj, P.S. Jhanjharpur, District Madhubani,
Bihar.
4. Netrayani Dai, Daughter of Raj Kumar Jiweshwar Singh.
5. Chetna Dai.
6. Draupati Dai.
7. Anita Dai.
8. Sunita Dai., all daughters of Late Raj Kumar Jiweshwar Singh No. 1 Girindra
Mohan Road, Darbhanga, P.S. Darbhanga, Town and District Darbhanga.
9. Ratneshwar Singh.
10. Rajneshwar Singh, Both sons of Raj Kumar Yogeshwar Singh.
11. Smt. Bijoy Kishoriji, Wife of Raj Kumar Yogeshwar Singh.
Defendants 9 to 11 are resident of European Guest House, Darbhanga, P.S.
Darbhanga, Town and District Darbhanga.
12. Sri Ram Nath Jha, Son of Late Shanti Nath Jha.
Resident of Village Pahi, P.O. Sarso Pahi, District Madhubani.
.... .... Defendants
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Appearance :
For the Appellant/s : Mr. KALYAN KUMAR GHOSE
Mr. Ranjit Narayan
Mr. Sachchidanand Choudhary
Mr. Neelam Kumari
Mr. Shardanand Mishra
Mr. Lovekush Kumar
For the Respondent/s : Mr. RAMESH JHA
Mr. Shantinath Jha
Mr. Sharda Nand Jha
Mr. Prasant Kr. Jha
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CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN
ORAL JUDGMENT
Date: 10-10-2012
2 Patna High Court FA No.213 of 1995 dt.05-10-2012
2 / 28
S.A. Khan, J. Darbhanga Raj in Bihar was one of the biggest
Zamindaris. The Raj had huge properties in Darbhanga, Patna,
Kolkata and other places. After the death of Maharajadhiraj Dr. Sir
Kameshwar Singh (hereinafter referred to as „the Maharaja‟), the
properties became embroidered in disputes.
2. Maharajadhiraj Rameshwar Singh had died leaving
behind two sons and one daughter, namely Kameshwar Singh,
Visheshwar Singh and Laxmi Devi. After the death of Maharajadhiraj
Rameshwar Singh, his elder son namely Maharajadhiraj Kameshwar
Singh succeeded by law of primogeniture of the impartible estate
„Gaddi‟ of late Maharajadhiraj Rameshwar Singh. The younger
brother of Maharajadhiraj was given the property at Raj Nagar.
Maharajadhiraj had three wives. His second wife Maharani
Kameshwari Priya died during his life time prior to 1956. His
younger brother also died during the life time of his brother
Kameshwar Singh. The defendants-second parties are the grand sons
and grand daughters of late Visheshwar Singh and the other
defendants are the trustees created by a Will dated 5.7.1961 by
Maharajadhiraj Dr. Sir Kameshwar Singh. Late Visheshwar Singh
left behind three sons after his death, namely Kumar Jeeveshwara
Singh, father of defendant nos. 2 to 8 in the plaint, Rajkumar
3 Patna High Court FA No.213 of 1995 dt.05-10-2012
3 / 28
Yajneshwar Singh, father of defendant nos. 9 to 11 and Subheshwara
Singh father of the plaintiffs. Maharajadhiraj died in 1962 leaving
two wives namely Maharani Raj Laxmi since deceased and Maharani
Kamsundari, defendant no. 1. Maharajadhiraj created a trust on
5.7.1961as he had no children from his three wives which has led to various disputes, which have been settled by the Hon‟ble Supreme Court. Late Pandit Laxmikant Jha was appointed as the sole executor of the Will. At present Maharani Kamsundari Devi and plaintiff nos. 1 and 2 are the trustees.
3. The present dispute is revolved around Box No. 307 which contains ornaments and jewelleries deposited in the Raj treasury. The plaintiffs claim that this Box No. 307 is part of the residuary estate as covered by Clause 4 of the Deed of Will dated 5.7.1961 and further claim that they are thus entitled to 1/3 share in the said jewelleries and ornaments as per the Will. The suit had also been filed for an order of restrain against defendant no. 1 claiming and taking possession of the aforesaid Box No. 307.
4. The plaintiffs have described in the manner in which the trustees were appointed which is not disputed by either party. It is their case that the plaintiffs and appellants are beneficiaries of the trust created under Clause 4 of the Will and have jointly 1/3 share in the residuary estate. Before going further, it would be relevant to 4 Patna High Court FA No.213 of 1995 dt.05-10-2012 4 / 28 quote Will which is part of the plaint and the judgment both.
"1. I bequeath the property mentioned in Schedule „A‟ to my wife Maharani Rajyalakshmi for her life for her residence only (and for no other purpose). She shall be entitled to reside in the said house and use the furniture and fittings solely without let or hindrance by anybody. After her demise the said property shall vest in my youngest nephew Rajkumar Subheshwara Singh absolutely.
2. Similarly, I bequeath the property mentioned in Schedule „B‟ to my wife Maharani Kamsundari for her life for her residence only (anf for no other purpose) and at her demise the said property shall vest in my youngest nephew Rajkumar Subheswara Singh absolutely.
3. I further bequeath to my wife Maharani Rajyalakshmi assets of the value of Rs. 15 (fifteen) lacs and to my wife Maharani Kamsundari assets of the value of Rs. 15 (fifteen) lacs.
4. Subject to the dispositions and bequeath mentioned above my entire residue of my estate shall vest in a Board of Trustees consisting of persons named and described in Schedule "C" who hold the property in trust for my two wives and the children of my aforesaid three nephews (sons of my deceased brother). The Trustees shall pay out capitals assets Rs. 8 (eight) lacs to Maharani Rajyalakshmi and Rs. 12(twelve) lacs to Maharani Kamsundari, and keep the properties, particularly the house properties in proper repairs. On the demise of my two wives, one-third of the properties shall vest in the children of my youngest nephew Rajkumar Subheshwara Singh born of a wife of his own Brahman Community, and one-third will be divided between the children of my other two nephews, Rajkumar Jeeveshwara Singh and Rajkumar Yajneshwara Singh and one-third will remain in Trust for public charitable purposes.
5(a) The properties bequeathed to my wife Maharani Rajyalakshmi shall be held in trust for her life by a Board of Trustees consisting of (1) Sri Girindra Mohan Misra, son of Pandit Bhagawant Bihari Misra of Village Behta, Thana Behara, District 5 Patna High Court FA No.213 of 1995 dt.05-10-2012 5 / 28 Darbhanga (2) Sri Lakshmikant Jha, son of Pandit Ajaib Jha of village Balia Thana Madhubani, District Darbhanga and (3) Sri Mukunda Jha, son of Pandit Ganeshdutta Jha of Village Mohanpur, Thana Sadar, District Darbhanga who will hold the property in trust for the said legatee, and shall pay to her, after payments of taxes and other public demands Rs. 3,000/- (Rupees three thousand) per month to her and should the net income of the properties after payment of taxes and other similar liabilities be not found in any year to be sufficient to enable the trustees to pay to her Rs. 3,000/- (Rupees three thousand) per month, they will be at liberty to make up the deficit from out of the capital assets.
(b) Similarly the properties bequeathed to my wife Maharani Kamsundari shall be held in trust for her life by a Board of Trustees composed of the same persons, namely Sri Girindramohan Misra, Pandit Lakshmikant Jha and Sri Mukunda Jha who shall pay to her monthly Rs. 3,000/- (Rupees three thousand) from out of the income of the property and should the net income of the property after payment of taxes and other public demand be not sufficient in any year to enable the payment of the net amount of Rs. 3,000/- (Rupees three thousand) to her, the Trustees will be at liberty to make up the deficit from out of the capital assets of the legatee.
6. The Trustees aforesaid shall keep in proper repairs the house properties mentioned in Schedule „A‟ & „B‟ and spend the necessary amount for their maintenance from out of the income of the properties bequeathed to Maharani Rajyalakshmi and Maharani Kamsundari respectively.
7. In case of any vacancy in the office of a Trustee by resignation, death or otherwise the vacancy shall be filled by the remaining Trustees. If such vacancy is not so filled up within 6 (six) months, the principal either suit, motion or on the application of any persons interested in the properties will fill up the vacancy.
8. The trustees shall terminate on the death of my two wives except the trust in respect of public charitable purposes.
9. I appoint Sri Lakshmikant Jha, son of 6 Patna High Court FA No.213 of 1995 dt.05-10-2012 6 / 28 Pandit Ajaib Jha, deceased of Balia, Thana Madhubani, District Darbhanga and Advocate Supreme Court, as the executor to this my last Will and testament. The aforesaid Executor shall, on my demise, pay all expenses incidental to or consequent on my demise, and also pay all liabilities that I might have incurred before my demise or that may accrue as a consequence of my demise including all public demands payable after my demise in respect of my estate. It shall also get all my assets valued by an approved valuer and shall make distribution of the bequests as per directions given above. In making such distribution of the assets, the properties mentioned in Schedule „A‟ and „B‟ and also properties situate within the Rambag Compound will not take into account. The Executor shall take all the necessary steps to the administration of the estates in accordance with the direction hereinbefore laid down.
Schedule "A"
1. The residential house at Rambag at present in occupation of Maharani.
Schedule "B"
2. The palace commonly known as Nargauna Palace, with attached garden bounded on the north by the compound wall, and south by road which passes by the marble temple of Mahavir, running east and west on the ext by the compound wall and on the west by the Schedule "C"
(Names of Trustees)
1. Shri Girindramohan Misra, son of Pandit Bhawant Bihari Misra deceased of village Behta, Thana Behara, District Darbhanga.
2. Shri Lakshmikant Jha, son of Pandit Ajait Jha deceased of village Belia, Thana Madhubani, District Darbhanga.
3. Ojha Sri Mukunda Jha, son of Pandit Ganeshdutta Jha deceased of village Mohanpur, Thana Sadar, District Darbhanga. It appears that there are some mistakes in the Will and Schedule „B‟ does not appear to be complete. It may be noted that this is what the position appears to be in the original Will executed by the Maharaja." On the basis of the recitals in the aforesaid Will the plaintiffs claim 1/3 7 Patna High Court FA No.213 of 1995 dt.05-10-2012 7 / 28 share of the Box No. 307 which is housed in the safe/treasury, along with other movable assets of the Raj, (as well as other members of the Raj family), as according to them it is part of the residuary property.
5. The defendant no. 1 had filed her written statement and contested the suit denying the claim of the plaintiffs. She claims that Box No. 307 is not part of Clause 4 of the Will and, therefore, is not bequeathed under the Will of Maharajadhiraj and the plaintiffs and defendants-second set have no claim to the said jewelleries. She claims to be the owner of the jewelleries absolutely and exclusively claiming that it is the „Stri Dhan‟ of late Maharanidhirani Raj Laxmi which after her death devolved on this defendant, thereby denying the claim of the plaintiffs with respect to the said Box No. 307. The case of defendant no. 1 in a nutshell is that Box No. 307 was never part of the residuary estate and the trustees had nothing to do with the said jewelleries. She has also denied the case of the plaintiffs that there has already been an interpretation of Clause 4 of the Will by Kolkata High Court rather the question was raised for dissolution of the properties covered by Clause 5(A) of the Will Maharajadhiraj and hence the plaintiffs have erroneously interpreted and pressed Clause 5 (A) of the said Will for laying claim that it is part of the estate of late Maharajadhiraj. Maharani Kamsundari Devi has categorically stated that Box No. 307 contains the personal property of Maharanidhirani 8 Patna High Court FA No.213 of 1995 dt.05-10-2012 8 / 28 Raj Laxmi which was kept in the safe custody of the Raj treasury along with several other movable properties of the members of the family of late Maharajadhiraj which was utilized by her from time to time.
6. Lengthy arguments were made in the Court below and several issues have been framed by the Trial Court, the issue which is relevant in the appeal are (a) whether the jewelleries kept in Box No. 307 by Maharanidhirani Raj Laxmi and deposited in the Raj treasury formed part of the estate of her late husband Maharajadhiraj? (b) whether the jewelleries kept in Box No. 307 by late Maharanidhirani Raj Laxmi was her „Stri Dhan‟ and, (c) whether the plaintiffs can have any right claim and interest in the jewelleries? (d) whether the plaintiffs can proceed with the suit in view of the decision of the Supreme Court?
7. This Court must admit that the judgment of the Trial Court covers all the issues in great detail and at the outset it may be stated that this Court agrees with the reasoning and decision rendered by the Trial Court. However, this Court will refer to the arguments of the parties made before it to substantiate the findings of the Trial Court. It may be stated that the case is mainly based on the documentary evidence. The plaintiffs have led oral evidence, the defendant has not deposed in the Court below and has based her case 9 Patna High Court FA No.213 of 1995 dt.05-10-2012 9 / 28 on the documents produced in course of trial. Broadly speaking the arguments raised on behalf of the appellant are that the articles of Box No. 307 were not personal property of the senior Maharani. Infact the senior Maharani has sold most of her properties in 1969 and as such whatever was left over was the property of the estate of Darbhanga Raj. It is said that the Will in no certain terms has bequeathed a certain sum of money for both the Maharanis as well as made arrangements for their comfortable stay at the palace owned by Darbhanga Raj. Thus late Maharajadhiraj took care that his wives would be maintained and would have a comfortable life after his death in the said Will. He bequeathed defined sums of money to his two wives and as such whatever was left over was part of the estate. The plaintiffs have also argued that the jewelleries etc. actually belonged to late Maharajadhiraj and were kept in the Raj treasury to be utilized by them as and when required. Great pains have been taken to demonstrate before this Court that the senior Maharani had on several occasions called for her jewelleries and returned it back to the Raj treasury. It is also said that in the year 1969 the senior Maharani sold all her jewelleries and thus no longer had any personal property for her to inherit. It has been argued that defendant no. 1 has failed to show that the jewelleries contained in Box No. 307 were the „Stri Dhan‟ of the senior Maharani inasmuch as the pleadings do not 10 Patna High Court FA No.213 of 1995 dt.05-10-2012 10 / 28 indicate as to how the senior Maharani acquired the jewelleries.
8. The issues in this case are such that they cannot be taken up separately rather one issue merges with the next. The plaintiffs as stated earlier are claiming 1/3 share of Box No. 307 which contains ornaments and jewelleries belonging to late Maharanidhirani Raj Laxmi, whereas, defendant no. 1 claims that she is the exclusive owner of the contents of Box No. 307 by virtue of inheritance as she comes within Schedule I of the Hindu Succession Act. She claims that the jewelleries and ornaments as contained in Box No. 307 were part of the „Stri Dhan‟ of late Maharanidhirani Raj Laxmi, whereas the defendant claims that it was part of the Darbhanga estate.
Issue No. (a), (b) and (c)
9. The question as to whether the jewelleries in Box No. 307 belonged to Maharanidhirani Raj Laxmi as „Stri Dhan‟ is perhaps a wrong perception of the entire issue. This aspect would be clear from the pleadings as well as evidence led by the plaintiffs. At paragraph 20 of the plaint, it is stated that the senior Maharani died on 22.11.1976 but before her death she delivered in the Raj Treasury, Box No. 307 containing jewellery which was entered in Raj Treasury register serial no. 41 and was kept in the Raj Treasury as the items of the properties appertaining to the residuary estate. Therefore, it is in 11 Patna High Court FA No.213 of 1995 dt.05-10-2012 11 / 28 part admitted that the senior Maharani by virtue of being married to Maharajadhiraj had in her exclusive possession jewellery which she utilized and kept in safe custody in the Raj Treasury. The pleading that it was a residuary property is a question which would require to be proved by the plaintiffs. Defendant nos. 12 to 14 who were the then trustees have stated at paragraph 10 that the statements made by the plaintiff at paragraph 17 of the plaint that Schedule A (list of ornaments and jewels) are the properties of the residuary estate has been denied, therefore, there is no occasion for this Court to hold that he senior Maharani was not the absolute owner of the jewels and ornaments which she utilized, sold and dealt with independently without any interference from any quarter. The Trial Court while considering this aspect has also come to a finding that the Maharani used to send her jewels to Raj Treasury and also requisition them for her use from time to time, which is virtually an undisputed fact and is corroborated by evidence as contained in Exhibit 1, 2, 4, 5, F and H which this Court will discuss as the judgment proceeds. The Trial Court has also come to a finding that whatever the properties a Hindu woman has got for all practical purposes is as good as her „Stri Dhan‟ as per the Hindu Succession Act, 1956 and even according to the amendments made thereafter. In other words the clothes, jewelleries and other personal items utilized by the Maharanies, were their 12 Patna High Court FA No.213 of 1995 dt.05-10-2012 12 / 28 Stridhan which they got by virtue of being married to the Maharajas. Besides which the plaintiffs have argued that the Maharani had sold her entire jewellery after the death of the Maharaja. This argument leads this Court to conclude that infact the plaintiffs, if not directly, indirectly have accepted the case of the defendant that the jewellery belonged exclusively to defendant no. 1. Therefore, the argument that defendant no. 1 is required to prove that the ornaments and jewels owned by her were her „Stri Dhan‟ is negated by this Court.
Dealing with Jewellery
10. Emphasis has been laid on Ext. 5 in order to establish that the contents of Box No. 307 are not the ornaments of late senior Maharani. It has been argued that P.W. 1 in his evidence has stated that Maharani Raj Laxmi sold all her jewels and ornaments in the year 1969. In order to support this aspect, counsel for the appellant refers to Ext. 1 which is a letter dated 4.4.1969 sent by the senior Maharani to the Assistant Manager, Raj Darbhanga asking him to send all her jewellery to the house (Deohri). On the basis of Exts. 1 and 2 it is argued that it had been recorded that the senior Maharani had directed the Manager to sell certain jewellery which have been described in Ext. 2. The sale proceeds of which had been deposited in the bank which would be apparent from the noting dated 25.4.1969 of the said Ext. 2. This document does not indicate that the Maharani had sold 13 Patna High Court FA No.213 of 1995 dt.05-10-2012 13 / 28 all her jewellery, rather it mentions certain items which were sold by her. The argument is that Ext. 1 mentions that her entire jewellery was sent to her for inspection and subsequently there was an order to sell the said jewellery. Since counsel for the appellant argues that the term" 4.4.69 " meaning thereby that she had sent for her entire jewels. On the basis of the document Ext. 2, it cannot be denied that the senior Maharani had sold part of her jewels, yet she had sufficient jewels left over. It has been argued that the senior Maharani was not left with any jewels after 1969 and that she had sold everything which is neither substantiated by any document nor can such an argument be believed.
11. On the other hand, this Court may refer to Ext. 5 which is a register maintained by the Manager of the Raj Treasury which contains the list of items which were kept in the Raj Treasury. The dispute arises out of the entry made at page 41 of this document where 307 is mentioned. It has been contended by the appellant that 307 is not the box number rather it is the serial number in the said register. For example Box Nos. 295, 296, 297, 298, 299, 300, 301, 302, 303 and 307 are wooden boxes which contain valuables of senior Maharani having been issued on different dates which go to show that apart from Box No. 307 senior Maharani had several other boxes 14 Patna High Court FA No.213 of 1995 dt.05-10-2012 14 / 28 which contained her valuables. Exhibit 5, therefore, negates the claim of the appellant that the Maharani had sold all her jewellery or other valuables. Before considering this argument, I would like to point out that the Raj Treasury stored not only the important documents, keys, steel trunks of the Maharajadhiraj and the Rani Sahibas but was also utilized by the family member to keep their valuables in safe custody. On examination of this register this Court also notices that several boxes were stored in Raj Treasury which belonged to the Maharani.
12. This argument however, would be borne out by the documents filed in the suit such as the interpleader suit filed by the then trusty Pt. Sri Laxmi Kant Jha, Ext. M and the judgment delivered in the suit, Ext. N; Title Suit No. 245/1968, Ext. 8 again filed by Pt. Laxmi Kant Jha and the compromise decree in the said suit, Ext. 4 and Ext. 5 which are the register of the items kept in the Raj Treasury.
13. I will first refer to Ext. 4 which is a list of jewels of senior Maharanidhirani Sahiba which was deposited through B. Parmanand Thakur. This list was prepared on 26.4.1969. The appellant has submitted that this list does not mention Box No. 307. On perusal of the original register which contains the list it would appear that it contains the number of items but does not bear the description of the box in which it was deposited in the Raj Treasury. It would also appear from the remarks column that several of the 15 Patna High Court FA No.213 of 1995 dt.05-10-2012 15 / 28 items had been repaired, a few had been sold by the Senior Maharani, therefore, it does not substantiate the case of the plaintiffs in any manner, so as to lead this Court to conclude that those items were deposited in the Raj Treasury in a jewel box or a container which had a definite number on the box. It merely contains the list of jewels which were deposited by the Maharani in 1945. Although it would be interesting to note that the Manager really did not know what exactly were the contents of the boxes which were kept in the Raj treasury as it has been mentioned in the register as follows:
"one wooden box duly locked by two locks said to contain the valuables of senior Maharanidhirani Sahiba" or "a wooden box locked with three locks said to contain the valuables of senior Maharanidhirani Sahiba." It has been argued that the number in the said register i.e. 307 really does not specify the box number rather it is the serial number in the register. Whatever it may indicate, it is apparent that the senior Maharanidhirani did not sell her entire jewelleries and that even after 1969 she had at different times called for her valuables from the Raj treasury, for whatever purpose, and subsequently returned them to the Raj treasury. It would also appear from exhibit 4 that quite often the senior Maharani called for her jewelleries in order to repair it or to get it cleaned or re-set. It may be significant to note that apart from senior Maharani the appellants or
16 Patna High Court FA No.213 of 1995 dt.05-10-2012 16 / 28 their forefathers had also deposited their jewelleries in the Raj treasury for safety. Entries/items nos. 305, 306, 308 and 309 would indicate this fact.
14. To answer the contention raised by the appellant that 307 is not the box number but merely a serial number, this Court would indicate that the boxes have deposited in the treasury were entered in the register and given a number which was also pasted on the boxes so deposited, therefore, this argument is not of much use to the appellants. The appellants have argued that the treasury register has not been exhibited and, therefore, defendant no. 1 has not been able to disclose that Box No. 307 referred to in Ext. 5 tallies with the treasury register. The argument is that it was the plaintiff who had to prove that the entry at Ext. 5 tallies with the entry in the treasury register. This Court negates this argument on the ground that the onus lies squarely on the shoulder of the plaintiff to prove his case.
15. In this context, it would be proper to quote the provisions of Section 110 of the Evidence Act.
110. Burden of proof as to ownership.- When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
16. In the present case the specific case made out by the 17 Patna High Court FA No.213 of 1995 dt.05-10-2012 17 / 28 plaintiff with regard to Box No. 307 being part of residuary property of Late Maharaja is being pleaded in Paragraph 20 and 21.
"20. That Senior Maharani Rajya Lakshmi died on 22.11.76 but before her death she delivered in Raj Treasury Box No. 307 containing Jewelleries which was entered in Raj Treasury Register serial No. 41 and kept in the Raj Treasury as one of the items of the properties appertaining to the Residuary Estate."
"21. That the aforesaid Jewelleries in Box No. 307 kept by Maharani Rajya Lakshmi in Raj Treasury belong to the Residuary Estate of Late Maharajadhiraja referred to in Clause 4 of the Will dt. 5.7.61 and are at present in the custody of Trustees who are defendants no. 12 13 and 14 of this suit who are Trustees of the Residuary Estate on behalf the plaintiffs and defendants 2n party of this suit the beneficiaries under Clause 4 of the Will relating to the said Residuary Estate properties."
17. The pleading aforesaid indicate that it is the plaintiff who is denying that the defendant no. 1 has exclusive claim to the property. If the plaintiff was successful in establishing the property was the residuary property of the Estate, then alone would the burden of proof shift to the defendant.
Interpleader Suit
18. This Court will now deal with the interpleader Title Suit No. 253/1967 Ext. M and the decision in the said case which is Exts. N and O as well as the Exts. 7, 8 and 9 of Title Suit No. 245/1968. These two documents falsify the appellants plea that the senior Maharani had sold all her jewels and was left with nothing and, 18 Patna High Court FA No.213 of 1995 dt.05-10-2012 18 / 28 therefore, whatever jewellery remains in the Raj Treasury it comes within the residuary estate of Raj Darbhanga. It also negates the claim of the appellant that defendant no. 1 i.e. the senior Maharani was only entitled to use the jewellery during her life time and after her death her entire jewellery would revert to the estate and was to be dealt with as part of the residuary estate of the Raj.
19. Title Suit No. 253/1967 was filed by Pt. Sri Laxmi Kant Jha in which the father of plaintiff no. 1 is defendant no. 5 in the suit. The senior Maharani and junior Maharani are defendant nos. 1 and 2 in the suit respectively. At paragraph 7 of the plaint it is stated that Smt. Maharani Rameshwari Lata known as junior Raj Mata, mother of late Maharajadhiraj Sri Kameshwar Singh Bahadur, Raja Bahadur and Raja Visheshwar Singh died on 19.6.1943 leaving behind certain movables as her „Stri Dhan‟ in the shape of ornaments etc. which are all kept in the Raj Treasury in a box. At paragraph 8 it is stated that after the death of the said junior Raj Mata, mother of the said late Maharajadhiraj and the said late Bahadur Visheshwar Singh, the aforesaid movables were brought to and kept in Raj Treasury under the orders of the said late Maharajadhiraj Kameshwar Singh Bahadur. "That it appears that sometime later the aforesaid movables were under the oral instructions and of late Maharajadhiraj Sri Kameshwar Singh Bahadur began to be treated as belonging to two 19 Patna High Court FA No.213 of 1995 dt.05-10-2012 19 / 28 Maharanis, defendant first party and kept separately in their names in the strong room of Raj Treasury and the register was maintained accordingly, and so under bona fide belief relying upon the Raj record the plaintiffs did not take it to be part of assets of late Maharajadhiraj Sri Kameshwar Singh Bahadur." It was also pleaded that after 1966 the defendant second set began to make a demand claiming half interest in the said movables on behalf of the Raj Kumars. The plaintiff, therefore, claimed that the defendants be required to interplead together concerning their claims to the said disputed property the plaintiffs be ordered to deliver the disputed property. The second prayer in the suit was that the plaintiff be ordered "to deliver the disputed property to the defendant or who be found be entitled or to place the control and disposal of the Court be discharged from all liabilities to either of the defendants in relation to said property." The judgment is at Ext. N. The relevant part is being quoted below.
"The plaintiff has alleged in his plaint that the property in suit was kept in one Raj Treasury after the death of the aforesaid junior Raj Mata and that it was treated as belonging to the defendants 1 and 2. The defendant no. 5 admits in his petition dated 30/9/70 that the property in suit belongs to the defendants 1 and 2. The defendants 3 and 4 do not resist the claim made by defendants 1 and 2 in respect thereof. So, on consideration of the above facts, evidence and circumstances, I am satisfied to hold that the property in suit which is kept in the Raj Treasury in the shape of ornaments belong to the defendants 1 and 2 exclusively
20 Patna High Court FA No.213 of 1995 dt.05-10-2012 20 / 28 to the extent of half and half share each and the other defendants have got no concern with the same."
20. The judgment aforesaid almost clinches the issue that each of the Maharanis had got half and half share and that defendant nos. 5 and 6 the father of the present appellants had not raised a dispute regarding this aspect of the matter and, therefore, the decision of the Court below would be binding on these appellants as well, to the extent as mentioned in the judgment. It is perhaps for this reason that the prayer in the present suit has been cleverly framed for a declaration that the ornaments in Box No. 307 was not part of their jewellery and whatever jewellery the senior Maharani had acquired was sold by her.
21. The next document which has been exhibited by the plaintiff but supports the case of the defendant first set is Exts. 7 to 9. A Title Suit was filed by the executor of the will Sri Laxmi Kant Jha in which the senior Maharani and the junior Maharani were the defendants. The claim of the plaintiff was that the disputed articles shown in the schedule belonged to the Maharajadhiraj formed part of his estate and he never parted with any of them in favour of the defendants. The defendants cannot claim any title to the Schedule I which are the movable properties namely ornaments and jewels by virtue of the fact that they were kept in the Raj Treasury. A claim was 21 Patna High Court FA No.213 of 1995 dt.05-10-2012 21 / 28 also made with respect to the movables of Nargounra Palace. Ultimately a compromise was filed which is contained in Ext. 8 wherein it is mentioned that the ownership of the ornaments and jewellery which were subject matter of the suit be declared in accordance with the compromise. Schedule I properties in the compromise which contains 9 items were declared to be an estate property whereas the ornaments as mentioned in Schedule II were said to be belonging to the senior Maharani and items mentioned in Schedule III were declared as belonging to the junior Maharani.
22. I may pause here and refer to an interim order passed by me in this appeal dated 9.2.2011 referring to the compromise decree, Ext. 8. This Court had directed that the matter could be partially solved if Box No. 307 was brought to the Court for examination to see whether the contents of the box tallied with the list of jewellery and ornaments as mentioned in Schedule I, II and III of the plaint. The matter traveled up to the Supreme Court which was dismissed in limine. After dismissal of the S.L.P this Court directed the District Magistrate and the Superintendent of Police, Darbhanga to open the Raj Treasury and produce the Box No. 307 in Court on 25.6.2011. Unfortunately the District Magistrate, Darbhanga despite the best efforts and co-operation of the parties was unable to open the safe which contains the box as the safe was „Jammed‟ due to the fact 22 Patna High Court FA No.213 of 1995 dt.05-10-2012 22 / 28 that it had not been operated for the past 30 years or more years. Thus, this Court could not determine this aspect of the matter.
23. Returning to the facts in this appeal it is clear that the documents referred to above also indicate that the senior Maharani had quite a few ornaments with her in the year 1976. It has been argued that in the cases referred to aforesaid, the plaintiffs were not parties and, therefore, it would not be binding upon them. Nevertheless the executor of the Will who was Incharge of administering and looking after the immovable and movable properties of Raj Darbhanga was by virtue of the post he held taking caring of interest of all the beneficiaries of the Will and as such this argument is not helpful to the appellants. In this context, counsel for the appellants argued that Title Suit No. 245 of 1968 was filed on 4.11.1968. The compromise was filed on 8.3.1976 whereas the compromise was accepted on 12.3.1976 which would be apparent from the order sheet in the suit. On 28.3.1976 senior Maharani received 82 items as mentioned in the said schedule, whereas, Ext. 5 indicates that the jewellery of senior Maharani was placed in the treasury on 24.3.1976. It is, therefore, argued that infact this compromise was never acted upon or accepted by the parties or alternatively that the Box No. 307 does not contain the ornaments as mentioned in Schedule II to the said compromise petition and decree, 23 Patna High Court FA No.213 of 1995 dt.05-10-2012 23 / 28 Exts. 8 and 9. The argument aforesaid has to be rejected for the reason that the senior Maharani and the junior Maharani presently defendant no. 1 had physical possession over the ornaments and were utilizing them which was the reason for filing the suit. It is not that they were physically handed over possession of the said ornaments rather the suit ended in a compromise recognizing their exclusive rights over the said ornaments and jewellery.
24. Counsel for defendant no. 1 has referred to Ext. K which is dated 29.5.1992 from the Income Tax Ministry with respect to assessment of income tax with respect to her assets including her jewellery which led to the valuation of the jewellery. Accordingly, the jewellery was valued by the then government valuer Sri Baidyanath Prasad for the purpose of assessment of wealth tax. Ext. Q is the report of the valuer. The submission is that Exts. K, P and Q clearly indicate that the property in dispute (21 items) were duly valued and assessed by the Income Tax Department which indicates that jewellery of defendant no. 1 is the same as that which is subject matter of the present suit. The original records are available with this Court. Ext. L which has not been annexed to the paper book indicates that the inventory was made in presence of the father of the plaintiffs Raj Kumar Subheshwar Singh and as such the plaintiffs cannot argue beyond the records to say that the jewellery in question is part of the 24 Patna High Court FA No.213 of 1995 dt.05-10-2012 24 / 28 residuary estate. In this context, it has also been argued that after the death of Maharajadhiraj no duties was paid for the jewellery and the returns filed on behalf of Darbhanga Raj did not indicate that the ornaments were part of the estate of late Maharaja which also is a fact in favour of defendant no. 1, or else the estate would have to pay death duty on the valuation of the ornaments. Therefore, by virtue of these documents this Court as well as the Trial Court has concluded that Box No. 307 contains the ornaments of the senior Maharani.
25. I may refer to the judgment of the Kolkata High Court Ext. 6. The Will was probated by the Kolkata High Court on 26.5.1963. Thereafter litigation with respect to the property of Darbhanga Raj commenced and a suit bearing O.S. No. 1837 of 1968 was filed by the executor on the original side for interpretation of Clauses 3 and 4 of the Will which indicated that certain sum of money was to be handed over to the Maharanis. The question was whether it was to be put under the Board of Trustees as mentioned in Clauses 5A and 5B of the Will or whether it should be handed over directly to them. Respondent no. 1 in the said appeal lost the case. She preferred appeal no. 93 of 1975 which was decided by a Division Bench of the Court vide Ext. 6. It was observed in the said judgment that the "testator intended to make a bequeath of Rs. 15 lacs to each of his two wives only for their lives and not absolutely is made clear by the 25 Patna High Court FA No.213 of 1995 dt.05-10-2012 25 / 28 following provisions of the Will; "1. The bequeath is assessed value of Rs. 15 lacs each to the two wives 2. a trust is created in respect of the said bequest of the assets of Rs. 15 lacs to Maharani Raj Laxmi and a trust is also created in respect of bequest of the assets of value of Rs. 15 lacs to Maharani Kamsundari Devi." The Court concluded that Maharani Kamsundari Devi was not entitled to claim the assets of the value of Rs. 15 lacs bequeathed to Maharani Raj Laxmi as the surviving widow, as it was not an absolute bequest. It was held that the intention is sufficiently manifested in Clause 4 of the Will that the appellant Maharani will have 1/3 interest in the residuary estate, the children of Subheshwar Singh will jointly have 1/3 interest and the children of the other two nephews will jointly have 1/3 interest in terms of provisions of Clause 4 of the Will. This judgment did not deal with the movable properties which are subject matter of dispute between the parties in this case and, therefore, no inference can be drawn in favour of the appellant.
26. The appellant has not addressed this Court on the issue as to whether the junior Maharani Kamsundari Devi would not inherit the property of the senior Maharani but since it has been mentioned in the written statement where it has also been stated that it was not the „Stri Dhan of senior Maharani, this Court will answer this aspect of the matter as well. As already mentioned that the documents 26 Patna High Court FA No.213 of 1995 dt.05-10-2012 26 / 28 on record which have been accepted by the appellant as well as defendant no. 1 indicate that the senior Maharani was dealing with her ornaments and jewellery without interference of any person in the life time and after the life time of her husband late Maharajadhiraj which indicates that she was the absolute owner of the ornaments and jewellery. It would also, therefore, follow that the senior Maharani would be the absolute owner of Box No. 307 as this Court has already come to a conclusion that Box No. 307 contains the ornaments and jewellery of senior Maharani. The senior Maharani died on 22.11.1976 and after her death all the properties devolved upon defendant no. 1 in terms of Section 15(1)(b) and Section 16 of the Hindu Succession Act, 1956. The suit property was owned and possessed by the senior Maharani and kept in the Raj treasury by the late Maharajadhiraj on 24.3.1976 and by virtue of provisions of Section 14(1) of the Hindu Succession Act, 1956, she was absolute owner thereof as no documents prescribes any restriction in her interest in the property. In this context judgments as reported in AIR 1977 SC 1944, AIR 1987 SC 1493 and it would be apparent that the Apex Court has held that any property possessed by a Hindu family cleared before commencement of the Act will be held by her as a full owner thereof and not as a limited owner. It is argued on behalf of the appellants that the word which distinguishes the case of the ownership 27 Patna High Court FA No.213 of 1995 dt.05-10-2012 27 / 28 is that it is qualified by the word acquired used in the section.
Issue No. D
27. Lastly it has been argued on behalf of defendant no. 1 that the case of the appellants should be dismissed on the ground that all properties have also been settled by the judgment of the Supreme Court in Civil Appeal 3964 of 1965 of 1983 Ext. J. Having perused the judgment and the compromise it is quite clear that the jewellery and ornaments were never a part of the compromise before the Supreme Court and, therefore, the contention of defendant no. 1 that the suit was barred by constructive res judicata is rejected.
28. The argument on behalf of the appellant that it is for the defendant-respondent to prove that the property in question i.e. the contents of Box No. 307 belongs to the defendant cannot be sustained by this Court for the reason that it is for the person who has put forth his claim to prove his title and there is no question of the onus shifting to the other side. In this case, both the parties have led documentary evidence in respect of their claims, therefore, the shifting of onus upon the defendants has no significance. The initial burden of proof would lie on the plaintiffs to prove their case. Ram Chandra Mishra & Ors. Vs. Shiv Shankar Mishra & Ors. [1995 (1) PLJR 532] ; Sushil Kumar Vs. Rakesh Kumar [2004 (1) PLJR 261 (SC)]. The principle, therefore, is normally the initial burden of proving claim would lie on 28 Patna High Court FA No.213 of 1995 dt.05-10-2012 28 / 28 the person has asserts his title or a particular fact. The onus to prove an issue has to be discharged in the affirmative, when a fact or evidence is led to prove the same, the onus would thereafter shift to other side to negate existence of such a fact. In the present case, the onus of the plaintiff has to be discharged before it can shift to the other side to prove their case. The question of title would, therefore, have to be proved by the person who is asserting his title.
29. In conclusion, this Court finds that there is no reason to interfere with the judgment of the Trial Court and rejects the claim of the plaintiffs-appellants that the items in Box Bo. 307 are the residuary property of the estate and that the plaintiffs-appellants have 1/3 share in the residuary property. The defendants-respondents are thus declared as the exclusive owner of the contents of Box No. 307 kept in Darbhanga Raj Treasury.
30. This appeal is dismissed.
(Sheema Ali Khan, J.) Sanjay/A.F.R.